Buresh v. Reinke

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BURESH v. REINKE
Cite as 28 Neb. App. 47
Thomas L. Buresh, appellant, v.
Craig Reinke, appellee.
___ N.W.2d ___
Filed February 11, 2020. 	No. A-19-239.
1. Summary Judgment. Summary judgment is to be granted when there
is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.
2. ____. Summary judgment is proper only when the pleadings, deposi-
tions, admissions, stipulations, and affidavits in the record disclose that
there is no genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in a light most favor-
able to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
4. Summary Judgment: Proof. A party moving for summary judgment
has the burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that it is entitled
to judgment as a matter of law. If the movant meets this burden, then
the nonmovant must show the existence of a material issue of fact that
prevents judgment as a matter of law.
5. Summary Judgment: Evidence. When the parties’ evidence would
support reasonable, contrary inferences on the issue for which a movant
seeks summary judgment, it is an inappropriate remedy.
6. Trial: Evidence. Where reasonable minds could draw different conclu-
sions from the facts presented, such presents a triable issue of mate-
rial fact.
7. Negligence: Liability: Proximate Cause. In premises liability cases,
an owner or occupier is subject to liability for injury to a lawful visi-
tor resulting from a condition on the owner or occupier’s premises if
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BURESH v. REINKE
Cite as 28 Neb. App. 47
the lawful visitor proves (1) that the owner or occupier either created
the condition, knew of the condition, or by exercise of reasonable care
would have discovered the condition; (2) that the owner or occupier
should have realized the condition involved an unreasonable risk of
harm to the lawful visitor; (3) that the owner or occupier should have
expected that the visitor either would not discover or realize the danger
or would fail to protect himself or herself against the danger; (4) that
the owner or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate cause of
damage to the visitor.
8. Negligence: Contractors and Subcontractors. A general contractor in
possession and control of the premises has a duty to keep the premises
in such condition that they afford a reasonably safe place to work for
persons working on or otherwise rightfully on the premises.
9. Negligence. Duty is a question of whether a defendant is under any obli-
gation for the benefit of a particular plaintiff; in negligence cases, the
duty is always the same—to conform to the legal standard of reasonable
conduct in the light of the apparent risk.
10. ____. The question of whether a duty exists at all is a question of law.
11. Negligence: Expert Witnesses. When the conduct in question involves
specialized knowledge, skill, or training, expert testimony may be help-
ful or even necessary to a determination of what the standard of care
requires under particular circumstances.
12. Negligence. Once a court determines that a duty is owed by one party to
another, it becomes necessary to define the scope and extent of the duty.
In other words, the standard of care must be ascertained. The standard of
care is typically general and objective and is often stated as the reason-
ably prudent person standard, or some variation thereof, such as what a
reasonable person of ordinary prudence would have done in the same or
similar circumstances.
13. ____. Several factors relate to whether a possessor has breached a duty
to use reasonable care. These include (1) the foreseeability or possibility
of harm; (2) the purpose for which the entrant entered the premises; (3)
the time, manner, and circumstances under which the entrant entered the
premises; (4) the use to which the premises are put or are expected to
be put; (5) the reasonableness of the inspection, repair, or warning; (6)
the opportunity and ease of repair or correction or giving of the warning;
and (7) the burden on the land occupier and/or community in terms of
inconvenience or cost in providing adequate protection.
14. Negligence: 	Invitor-Invitee: 	Licensee: 	Contractors 	and
Subcontractors. After Heins v. Webster County, 250 Neb. 750, 552
N.W.2d 51 (1996), whether a possessor of land has breached a duty

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BURESH v. REINKE
Cite as 28 Neb. App. 47
to use reasonable care to protect lawful visitors is determined under
the same test for both licensees and invitees, which includes indepen-
dent contractors.
15. Negligence: Invitor-Invitee: Contractors and Subcontractors. An
independent contractor is a business invitee, to whom a possessor owes
a duty to protect against dangers it either knows of or could have dis-
covered with reasonable care.
16. Negligence: Liability: Contractors and Subcontractors. A possessor
of property is not liable for injury to an independent contractor’s
employee caused by a dangerous condition that arose out of the con-
tractor’s work, as distinguished from a condition of the property or a
structure on the property.
17. Negligence: Contractors and Subcontractors. A general contractor in
control of the premises where work performance under a contract with
the owner is being carried out owes a duty to persons rightfully on the
premises to keep the premises in a reasonably safe condition while the
contract is in the course of performance.
18. Negligence: Liability: Contractors and Subcontractors. A general
contractor in possession and control of the premises is only liable when
the subcontractor’s employee is injured because the workplace premises
were not safe. It is not liable when an employee is injured due to spe-
cific actions or inactions involved in the construction process.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Reversed and remanded for further
proceedings.
James R. Welsh, of Welsh & Welsh, P.C., L.L.O., and Lyle J.
Koenig, of Koenig Law Firm, for appellant.
Douglas L. Phillips and Clifton J. Kephart, of Klass Law
Firm, L.L.P., for appellee.
Moore, Chief Judge, and Bishop and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Thomas L. Buresh was injured while he was doing electri-
cal work as a subcontractor in the basement of a home con-
struction project; part of the home’s structure collapsed, and
a piece of lumber struck Buresh. He sued the homeowner, as

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BURESH v. REINKE
Cite as 28 Neb. App. 47
well as the general contractor for the project, Craig Reinke.
The homeowner and Reinke each filed third-party complaints
against Tyler Harms, the subcontractor who they alleged failed
to properly brace or secure the portion of the home that
Buresh claimed had collapsed on him. The Douglas County
District Court granted motions for summary judgment filed
by the homeowner and Harms, and the action was dismissed
as to those parties. Thereafter, Reinke moved for and was
granted summary judgment in his favor; Buresh’s complaint
was dismissed.
Buresh appeals only from the order granting summary
judgment in favor of Reinke. Because we conclude there
was sufficient evidence to overcome Reinke’s summary judg-
ment motion, we reverse the order and remand the cause
for further proceedings on Buresh’s premises liability claim
against Reinke.
BACKGROUND
In October 2016, Buresh filed a complaint against the home-
owner and Reinke, claiming that in October 2012, the home-
owner was building a home in Davenport, Nebraska, and that
Reinke was hired as the primary contractor. Buresh was hired
to do electrical work. On October 18, 2012, at about 10:30
a.m., the home was in a “dangerous condition,” because it was
only partially constructed, had been “framed, but not sheeted,”
and was “not braced or secured to prevent collapse.” It was a
“windy day.” Buresh was working in the basement. He heard a
“pop” and then saw the “structure” coming down on him (other
parts of the record suggest the structure that hit Buresh may
have been a “two-by-four, approximately five feet long,” that
“could have been a piece of a truss or a piece of a wall”). It
landed across his right shoulder, causing him to fall into a pile
of sand and injure his left hand.
Buresh alleged that the homeowner and Reinke were in
control of the work and had to use reasonable care to main-
tain the premises in a safe condition for those on it. Buresh

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BURESH v. REINKE
Cite as 28 Neb. App. 47
asserted that they were or should have been aware of the
“dangerous condition” of the home at the time of the incident.
Buresh claimed that the homeowner and Reinke breached
their duty to exercise reasonable care to “maintain the build-
ing in a safe condition.” Buresh alleged that he suffered sev-
eral injuries that were the direct and proximate result of the
claimed breaches. As a direct result of his injuries, Buresh
claimed he had suffered and would continue to suffer a variety
of damages.
The homeowner and Reinke each filed third-party complaints
against Harms, generally alleging that if Buresh proved negli-
gence, it would have been Harms’ negligence that proximately
caused the alleged collapse and Buresh’s alleged injuries.
In May 2017, the homeowner filed a motion for summary
judgment, which the district court granted in November. The
court concluded that by virtue of Reinke’s oral agreement to act
as the general contractor, responsibilities to control the prem-
ises and people working there were Reinke’s alone. Buresh’s
complaint as to the homeowner was dismissed. Buresh does
not assign error as to this order.
In March 2018, Harms filed a motion for summary judg-
ment as to Reinke’s third-party complaint against him. The
district court entered an order in May, concluding there was no
evidence that the trusses were negligently braced or installed,
that the installation was in violation of the standard of care,
or that any negligence of Harms was the proximate cause of
the failure of the trusses. Harms’ motion for summary judg-
ment was granted, and Reinke’s third-party complaint against
Harms was dismissed. Buresh does not assign error as to
this order.
In October 2018, Reinke filed a motion for summary judg-
ment. In his “Statement of Undisputed Facts,” he asserted that
there was no genuine issue with respect to the material fact
that the “only evidence in the record with respect to the appli-
cable standard of care” was that (1) Harms constructed the
trusses in the same fashion he has always done and they were

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Nebraska Court of Appeals Advance Sheets
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BURESH v. REINKE
Cite as 28 Neb. App. 47
braced in accordance with industry standards (citing Harms’
deposition), (2) Reinke did not know of anything Harms or
his crew did to cause the failure of the truss system (citing
Reinke’s deposition), and (3) Reinke believed the trusses were
properly installed and secured (citing Reinke’s deposition).
Buresh disputed Reinke’s “Statement of Undisputed Facts” and
set forth a statement of facts in opposition to Reinke’s motion
for summary judgment.
The hearing on Reinke’s summary judgment motion took
place in December 2018. At Reinke’s request, the district court
said it would consider three exhibits received into evidence at
prior hearings: Reinke’s deposition, Harms’ deposition, and
the homeowner’s answer. Buresh reoffered his complaint and
Reinke’s deposition and then offered Buresh’s affidavit; all
exhibits were received into evidence.
According to Reinke’s deposition testimony, on October 18,
2012, the walls of the first floor were sheeted but there was
no sheeting on the roof. The structure had been braced with
“diagonal and in-line bracing to hold the trusses up straight
and in place.” Reinke said that roughly 50 trusses were going
to be in the roof of the house and that 60 percent of those 50
trusses were in place at the time of the accident. Reinke’s and
Harms’ testimony indicated that the trusses that were in place
had been set up a week prior to October 18. Reinke testified
that it was “[e]xtremely windy” the day of and the day before
the accident. Reinke and his brother were at the site the day
before the accident, and they “looked at the bracing.” Reinke
was “probably” sure he “added some to it.” Reinke determined
“it was sound and nothing was moving.” Reinke assumed
the building collapsed from the wind—that the bracing was
“inadequate for maybe the winds that blew, but I don’t — I
can’t say that for sure. I think it was adequate.” He acknowl-
edged he could have “put up more bracing” and that it was
his responsibility. When asked if it ever occurred to Reinke
that the framework could collapse and fall into the basement,
Reinke responded, “I guess I am sure it’s in the back of my

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BURESH v. REINKE
Cite as 28 Neb. App. 47
mind. All of those things play into a contractor’s thought proc-
ess; so I’d say yes.”
In his affidavit, Buresh claimed that the trusses had not
been braced and that no sheeting had been put on the structure.
Buresh had been around construction sites for many years, and
in his experience, after trusses are erected, they are braced
and sheeting is placed on them immediately. He said that on
October 18, 2012, he went to the construction site at the “spe-
cific insistence” of Reinke, “having previously voiced concern
to Reinke” about working in “extremely windy” conditions.
Reinke “guess[ed]” that he directed Buresh that he needed to
be at the worksite on October 18. But Reinke said that at no
time did Buresh voice to him a concern about the high winds
or the safety of being in the house.
During the hearing on Reinke’s summary judgment motion,
Reinke argued that Buresh had not offered evidence of Reinke’s
required standard of care. The district court indicated it did not
find an opinion in the record that “the industry requires that
[trusses be] immediately sheeted and had they been immedi-
ately sheeted the accident would not have happened.” Buresh
argued there was a material issue of fact in dispute about
whether Reinke should have had installation of sheeting or
more bracing because the day before the incident “[Reinke]
and his brother looked at the bracing and . . . [Reinke] said
he thought it might be inadequate, and they did nothing.”
Buresh claimed that Reinke had a duty to add bracing or to do
“something,” notwithstanding the “standard of the industry.”
However, Buresh did not know that there was “any evidence to
that effect” to show that had Reinke done that, then the inci-
dent would not have occurred.
The district court issued its order on January 10, 2019. The
court noted that the parties did not dispute Reinke’s control
over the workplace and that he had a duty to use ordinary and
reasonable care to avoid injuries to subcontractors working
on the premises. The court pointed to Harms’ and Reinke’s
testimony that the trusses were erected and braced to industry

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BURESH v. REINKE
Cite as 28 Neb. App. 47
standards and were properly installed and secured, but were
“knocked down by extremely high winds.” The court stated
that the question in the case was whether there were genuine
issues of material fact with respect to the last two elements
of Buresh’s negligence claim: breach of duty and proxi-
mate cause.
The district court concluded that Buresh failed “to pro-
duce any evidence as to the applicable standard of care for
carpenters or framers constructing and bracing trusses in a
building.” The court stated that the only evidence regard-
ing the standard of care came from Harms, who believed the
construction of the trusses was consistent with the applicable
standard. The court concluded, “Other than that opinion, and
[Reinke’s] opinion that the trusses were ‘adequately’ braced,
there is only speculation.” The court cited to Topil v. Hub Hall
Co., 230 Neb. 151, 430 N.W.2d 306 (1988), and Bargmann
v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998), with
regard to the absence of expert testimony to establish the
appropriate standard of care to prove a breach of duty. The
district court concluded there was no opinion on the appli-
cable standard of care, and it determined Buresh offered no
evidence that “the manner in which the trusses were braced,
or the absence of sheeting, was a cause of the collapse of
the trusses. [Buresh] merely speculates that the collapse was
due to high winds.” Therefore, the court determined there
was no genuine issue of material fact as to whether Reinke
was negligent in bracing or constructing the trusses, as there
was no evidence to support that allegation. Nor was there any
evidence that the manner in which the trusses were braced
or constructed was a cause of the collapse. The district court
granted Reinke’s motion for summary judgment and dismissed
Buresh’s complaint.
On January 17, 2019, Buresh filed a motion to alter or amend
the order sustaining summary judgment in favor of Reinke. The
district court overruled Buresh’s motion on February 7, and
Buresh timely appealed.

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Nebraska Court of Appeals Advance Sheets
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BURESH v. REINKE
Cite as 28 Neb. App. 47
ASSIGNMENTS OF ERROR
Buresh claims the district court erred by (1) requiring
Buresh to present expert testimony to establish the standard of
care for a premises liability action against a general contrac-
tor in possession and control of the premises, (2) holding that
Buresh’s evidence was not sufficient to create a genuine issue
of material fact as to Reinke’s negligence, and (3) requiring
Buresh to submit evidence on proximate cause.
STANDARD OF REVIEW
[1-3] Summary judgment is to be granted when there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Wintroub v. Nationstar
Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). Summary
judgment is proper only when the pleadings, depositions,
admissions, stipulations, and affidavits in the record disclose
that there is no genuine issue as to any material fact or as to
the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
of law. Id. In reviewing a summary judgment, an appellate
court views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence. Id.
ANALYSIS
[4-6] A party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that it is
entitled to judgment as a matter of law. Wynne v. Menard,
Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). If the movant
meets this burden, then the nonmovant must show the exis-
tence of a material issue of fact that prevents judgment as a
matter of law. Id. When the parties’ evidence would support
reasonable, contrary inferences on the issue for which a mov-
ant seeks summary judgment, it is an inappropriate remedy.

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BURESH v. REINKE
Cite as 28 Neb. App. 47
Id. Where reasonable minds could draw different conclusions
from the facts presented, such presents a triable issue of mate-
rial fact. Id.
We begin with Buresh’s assigned error relating to the neces-
sity of an expert witness to overcome summary judgment
for his premises liability claim against Reinke as a general
contractor. He argues that no expert testimony was necessary
because the standard of care for a general contractor “was to
use ordinary care to furnish a safe work place for its workers.”
Brief for appellant at 9. Buresh’s argument has merit when
applying premises liability principles to the evidence presented
at the summary judgment hearing.
[7] In premises liability cases, an owner or occupier is sub-
ject to liability for injury to a lawful visitor resulting from a
condition on the owner or occupier’s premises if the lawful
visitor proves (1) that the owner or occupier either created the
condition, knew of the condition, or by exercise of reasonable
care would have discovered the condition; (2) that the owner
or occupier should have realized the condition involved an
unreasonable risk of harm to the lawful visitor; (3) that the
owner or occupier should have expected that the visitor either
would not discover or realize the danger or would fail to pro-
tect himself or herself against the danger; (4) that the owner
or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate
cause of damage to the visitor. Thomas v. Kiewit Bldg. Group,
25 Neb. App. 818, 914 N.W.2d 456 (2018).
[8-10] The Nebraska Supreme Court has recognized that a
general contractor in possession and control of the premises
has a duty to keep the premises in such condition that they
afford a reasonably safe place to work for persons working on
or otherwise rightfully on the premises. Id. Duty is a question
of whether a defendant is under any obligation for the benefit
of a particular plaintiff; in negligence cases, the duty is always
the same—to conform to the legal standard of reasonable
conduct in the light of the apparent risk. Bargmann v. Soll

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BURESH v. REINKE
Cite as 28 Neb. App. 47
Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998). The ques-
tion of whether a duty exists at all is a question of law. Cerny
v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d
697 (2001).
[11] Buresh and Reinke do not dispute that Reinke owed
a duty to Buresh. Rather, they disagree about the standard
of care that Reinke owed under the particular circumstances
of this case. In other words, they dispute whether there was
sufficient evidence to establish that Reinke breached his duty
to provide Buresh a safe place to work. Reinke moved for
summary judgment on the ground that Buresh could not
prove that Reinke breached the standard of care applicable
to Reinke, which Reinke claimed was the standard of care
applicable to framing carpenters because Reinke and Harms
“framed the building in question.” Brief for appellee at 8.
Reinke cites to Cingle v. State, 277 Neb. 957, 766 N.W.2d
381 (2009), for the proposition that when allegedly negligent
conduct involves specialized knowledge, skill, or training,
expert testimony may be helpful or even necessary to a deter-
mination of what the standard of care requires under particular
circumstances.
[12] It is true that once a court determines that a duty is
owed by one party to another, it becomes necessary to define
the scope and extent of the duty. See Cerny v. Cedar Bluffs
Jr./Sr. Pub. Sch., supra. In other words, the standard of care
must be ascertained. See id. That standard is typically general
and objective and is often stated as the reasonably prudent
person standard, or some variation thereof; i.e., what a reason-
able person of ordinary prudence would have done in the same
or similar circumstances. Cerny v. Cedar Bluffs Jr./Sr. Pub.
Sch., supra.
[13] When considering the reasonably prudent person stan-
dard of care in a premises liability case, several factors relate
to whether a possessor has breached a duty to use reason-
able care. These include (1) the foreseeability or possibility
of harm; (2) the purpose for which the entrant entered the

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BURESH v. REINKE
Cite as 28 Neb. App. 47
premises; (3) the time, manner, and circumstances under
which the entrant entered the premises; (4) the use to which
the premises are put or are expected to be put; (5) the reason-
ableness of the inspection, repair, or warning; (6) the opportu-
nity and ease of repair or correction or giving of the warning;
and (7) the burden on the land occupier and/or community in
terms of inconvenience or cost in providing adequate protec-
tion. Downey v. Western Comm. College Area, 282 Neb. 970,
808 N.W.2d 839 (2012).
[14-17] The Nebraska Supreme Court abolished the dis-
tinction between invitees and licensees in premises liability
cases in Heins v. Webster County, 250 Neb. 750, 552 N.W.2d
51 (1996), holding that whether a possessor of land has
breached a duty to use reasonable care to protect lawful visi-
tors is determined under the same test for both licensees and
invitees, “which includes independent contractors.” Downey
v. Western Comm. College Area, 282 Neb. at 979, 808 N.W.2d
at 848. An independent contractor is a business invitee, to
whom a possessor owes a duty to protect against dangers it
either knows of or could have discovered with reasonable
care. Id. But a possessor of property is not liable for injury to
an independent contractor’s employee caused by a dangerous
condition that arose out of the contractor’s work, as distin-
guished from a condition of the property or a structure on the
property. Id. A general contractor in control of the premises
where work performance under a contract with the owner is
being carried out owes a duty to persons rightfully on the
premises to keep the premises in a reasonably safe condition
while the contract is in the course of performance. Dellinger
v. Omaha Pub. Power Dist., 9 Neb. App. 307, 611 N.W.2d
132 (2000).
[18] The Nebraska Supreme Court has held that a general
contractor in possession and control of the premises is only
liable when the subcontractor’s employee is injured because
the workplace premises were not safe. Thomas v. Kiewit Bldg.
Group, 25 Neb. App. 818, 914 N.W.2d 456 (2018). It is not

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BURESH v. REINKE
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liable when an employee is injured due to specific actions or
inactions involved in the construction process. Id.
In the present matter, the district court appears to have
considered the case under a theory of vicarious liability
rather than premises liability; in other words, the district
court appears to have focused on whether Reinke could be
held liable for defects that arose on the premises through the
negligence of Harms or Reinke in constructing and installing
the trusses. As a result, the district court found that a higher
standard of care was applicable to Reinke. The district court
found that Buresh failed to produce any evidence as to the
applicable standard of care for “carpenters or framers con-
structing and bracing trusses in a building” and that the “only
evidence regarding the standard of care [was] from Harms
who believe[d] the construction of the trusses was consistent
with the applicable standard.” The district court concluded
that other than Harms’ and Reinke’s testimony (as stated in
their depositions) that the trusses were adequately braced,
there was “only speculation.” Referring to Topil v. Hub Hall
Co., 230 Neb. 151, 430 N.W.2d 306 (1988), and Bargmann
v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998), the
district court suggested expert testimony was necessary to
prove the standard of care in this case. It found that Reinke’s
“speculative answers” in his deposition and Buresh’s “obser-
vation on the timing of sheeting” (stated in his affidavit)
offered “no opinion” on the applicable standard of care. The
district court did not consider the reasonably prudent person
standard of care associated with a premises liability claim, as
discussed earlier.
On appeal, Reinke agrees with the district court’s deter-
mination that expert testimony was needed to establish “the
applicable standard of care for carpenters or framers construct-
ing and bracing trusses in a building.” Brief for appellee at 9.
However, Buresh disagrees that the standard of care applicable
to Reinke was that of a framing carpenter. Buresh argues that
the applicable standard of care was that of a general contractor

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Cite as 28 Neb. App. 47
in control of the premises, or a duty to “use ordinary care to
furnish a safe work place for its workers.” Brief for appel-
lant at 9. We agree with Buresh. A premises liability claim
is not grounded upon proof of negligent construction; rather,
the consideration is whether the premises were safe. Here, the
question is whether Reinke exercised ordinary and reasonable
care to avoid injuries to subcontractors working on the prem-
ises given Reinke’s own acknowledgment that only 60 percent
of the roof trusses “were up,” that he and his brother “looked
at the bracing” the day before the accident because it was
“extremely windy,” and that he was “probably” sure he “added
some to it.”
Even assuming the roof trusses were properly constructed,
installed, and secured, there is a fact question as to whether
Reinke reasonably provided a safe workplace given the condi-
tions known to him. Reinke acknowledged that it was on his
mind that the roof trusses might collapse. He and his brother
looked at the bracing the day before the accident, because
it was extremely windy. Reinke also said he “probably”
could have put up more bracing to prevent what happened.
Reinke believed the accident happened because of high wind.
However, Harms denied that he could recall any other time
when trusses collapsed because of high wind. Nevertheless,
given Reinke’s acknowledgments, there is a fact question as
to whether Reinke exercised ordinary and reasonable care
to maintain a safe workplace by requiring subcontractors to
report to the site under the extreme wind conditions (given
his own inspection, actions, and concerns the day preceding
the accident).
Viewing the evidence in a light most favorable to Buresh
and giving Buresh the benefit of all reasonable inferences
deducible from the evidence, we conclude the evidence was
sufficient to create a question for the jury as to Reinke’s
liability. A jury could find that (1) Reinke knew of the “con-
dition”—Reinke and his brother were at the site the day
before the accident and “looked at the bracing,” Reinke was

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“probably” sure he “added some to it,” and the bracing was
“inadequate for maybe the winds that blew, but I don’t — I
can’t say that for sure,” thus acknowledging the possibility of
a present inadequate condition; (2) Reinke should have real-
ized the condition involved an unreasonable risk of harm to
a lawful visitor on the premises—Reinke acknowledged he
could have “put up more bracing,” which was his responsi-
bility, and it was in the back of his mind that the framework
could collapse and fall into the basement; (3) Reinke should
have expected that Buresh would either not discover or realize
the danger or would fail to protect himself against the dan-
ger—Buresh claimed he previously voiced concern to Reinke
about working in “extremely windy” conditions but Reinke
denied having that discussion; (4) Reinke failed to use reason-
able care to protect Buresh against the danger—Reinke either
failed to further brace the trusses adequately or alternatively
should not have required Buresh to work on an “extremely
windy” day given Reinke’s concerns about the trusses the
day before; and (5) the condition was the proximate cause of
damage to Buresh—the roof trusses collapsed causing injury
to Buresh. See Thomas v. Kiewit Bldg. Group, 25 Neb. App.
818, 914 N.W.2d 456 (2018) (setting forth elements for prem-
ises liability).
Further, 	in 	considering 	the 	reasonableness 	of 	Reinke’s
actions, there is sufficient evidence for a jury to consider the
foreseeability or possibility of the harm, the reasonableness of
Reinke’s inspection or warning, the opportunity for Reinke to
repair or correct the condition or give a warning, and the bur-
den on Reinke in terms of inconvenience or cost in providing
adequate protection. See Downey v. Western Comm. College
Area, 282 Neb. 970, 808 N.W.2d 839 (2012) (setting forth
factors relating to whether possessor of premises has breached
duty to use reasonable care).
As previously noted, the district court did not consider
the facts under a premises liability theory; rather, the court
appeared to focus on whether Reinke was liable or vicariously

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liable for allegedly defective construction or installation of the
trusses. However, under a premises liability claim, a general
contractor is only liable when the subcontractor’s employee
is injured because the workplace premises were not safe; it is
not liable when an employee is injured due to specific actions
or inactions involved in the construction process unless certain
exceptions are met. See Thomas v. Kiewit Bldg. Group, supra.
Therefore, the focus in the present matter should be on whether
Reinke should have been aware the workplace premises were
not safe, rather than on whether the trusses were improperly
constructed or installed.
In considering whether Reinke, as the general contractor,
should have known the workplace premises were potentially
unsafe, we need not consider whether expert testimony was
required at the summary judgment stage of the proceedings in
light of Reinke’s own testimony regarding his concerns and
actions the day preceding the accident, as previously set forth.
For the sake of completeness, we note that some claims of neg-
ligence under a premises liability theory against a general con-
tractor have not depended upon expert testimony because the
analyses did not ultimately concern whether the worksite was
unsafe. See, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d
181 (2014) (any breach of general contractor’s duty to provide
safe place to work did not cause subcontractor’s employee’s
death from fall off collapsed roof decking where injury was
due to specific actions or inactions involved in construction
process—employee was not wearing personal protection equip-
ment required to be worn where fall took place); Eastlick v.
Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007)
(employee was injured when he removed brace on scaffolding
in incorrect manner, and scaffolding was not owned, erected, or
maintained by general contractor).
Expert testimony in cases involving slip-and-fall injuries
has not been required to prove general contractors in posses-
sion and control of premises failed to provide reasonably safe
workplaces. See, Thomas v. Kiewit Bldg. Group, 25 Neb. App.

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818, 914 N.W.2d 456 (2018) (plaintiff presented sufficient
evidence to create question of fact as to general contractor’s
premises liability for plaintiff’s slip-and-fall injury; record
contained conflicting testimony from plaintiff and his coworker
versus defendant’s safety supervisor about whether sand on
dry concrete was hazardous); Sullivan v. Geo. A. Hormel and
Co., 208 Neb. 262, 303 N.W.2d 476 (1981) (plaintiff slipped
on bolt which was half covered in ice on stairs and fell; no
expert testimony needed to show general contractor failed to
keep reasonably safe workplace for workers where icy condi-
tion of steps had existed for prolonged time and where debris
was frequently or always present on steps, making footing even
more hazardous).
In 	a 	case 	involving 	a 	subcontractor’s 	employee’s 	fall
through an opening in a floor deck and impalement on three
1-foot, vertical reinforcing steel rods set in concrete on the
floor directly below a duct opening, the offer of expert wit-
ness testimony was at least recognized as relevant evidence.
See Simon v. Omaha P. P. Dist., 189 Neb. 183, 202 N.W.2d
157 (1972) (expert qualified by 30 years in construction
safety work who opined about reasonable conduct regarding
floor hole or opening—even though general contractor was
not bound by any code-directed standard of conduct—gave
relevant evidence as to reasonableness of general contrac-
tor’s conduct).
In the present case, expert evidence may ultimately be nec-
essary to succeed in persuading a jury regarding whether or not
Reinke exercised ordinary and reasonable care in maintaining
safe workplace premises given the state of the partially com-
pleted roof trusses and the windy conditions present on the
day of the accident. However, at this point in the proceeding,
Reinke’s own testimony describing his concerns and actions
the day preceding the accident is sufficient to create material
issues of fact precluding summary judgment in his favor on
Buresh’s premises liability claim.

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Cite as 28 Neb. App. 47
CONCLUSION
We reverse the district court’s order granting summary
judgment in favor of Reinke and remand the cause for fur-
ther proceedings on Buresh’s premises liability claim against
Reinke.
Reversed and remanded for
further proceedings.